Vineyard Estate Management Pty Ltd v Aberdine Pty Ltd & Anor No. Scciv-00-964

VINEYARD ESTATE MANAGEMENT PTY LTD V ABERDINE PTY LTD & ANOR
[2002] SASC 93

LANDER J. This is an application by the plaintiff for leave to amend its statement of claim.
The circumstances giving rise to the application are relevant.
The plaintiff has lodged a lien over land owned by the first defendant pursuant to the Workers Liens Act 1893 SA (the Act).
On 14 May 2001 the defendants made an application for the cancellation of the lien. The Master refused that application. The defendants appealed from that decision and on 10 December 2001 I heard that appeal.
During the course of the hearing I formed the opinion that the appeal should succeed. It was my view that the statement of claim did not disclose a contract between the plaintiff and the first defendant or that any amount was due or payable in the relevant sense as provided for in the Act. I indicated this opinion to counsel.
An application was then made for an adjournment to allow the plaintiff to obtain instructions on an application to amend its statement of claim.
I adjourned the matter and directed that the plaintiff file any proposed amended statement of claim within 14 days.
The matter came before me again on 8 February 2002. On that day I refused the plaintiff’s application to file the proposed amended statement of claim on the ground that it was defective in a number of respects.
I further adjourned the appeal until Friday 15 February 2002. On 14 February 2002 the plaintiff made yet another application to amend its statement of claim exhibiting a further proposed statement of claim to an affidavit sworn by the plaintiff’s solicitor. The matter was adjourned until 21 February 2002 at which time I reserved my decision.
The application to amend the statement of claim is opposed by the first defendant again upon the basis that it is defective in a number of respects. The first defendant has asked me to dismiss the plaintiff’s application to amend the statement of claim, to decide the appeal in accordance with the reasons I gave on 10 December 2001 and to make an order cancelling the registration of the lien.
It would be inappropriate to allow a defective statement of claim to be filed. A defective statement of claim would be one that was liable to be struck out because it breached any of the rules relating to pleadings. This action was commenced in October 2000 and is therefore governed by r 46A. In particular the statement of claim must comply with r 46A.03 and r 46A.02.
The plaintiff alleges that between May and July of 1999 the plaintiff and the defendants agreed to undertake a Vineyard Development Project. That project required the purchase by Aberdine of land at Wrattonbully. The land was intended to be developed as a commercial vineyard and interests would be sold in the land to third party investors (growers).
For the purpose of undertaking that project the plaintiff and the defendants, it is asserted, entered into an oral contract (The Vineyard Development Contract). In that contract they agreed to enter into two further contracts being a Vineyard Management Contract and a Vineyard Services Contract.
The Vineyard Development Contract also provided that the first defendant would purchase the land at Wrattonbully and would pay the purchase price for that land.
It is claimed that the second defendant would manage the development of the land and it would finance the costs of that development. It was expressly agreed, so it was alleged, that the second defendant would pay the contractors engaged in the development of the land including the plaintiff for work performed on the land.
It is alleged in paragraph 11 that the Vineyard Development Contract contains a number of implied terms.
Those terms are implied terms and respond to circumstances whereby the second defendant did not sell all or any of the units to the growers or if the scheme failed or was terminated.
It is pleaded in paragraphs 11.1.2 and 11.2.3 that the first defendant would pay the second defendant the cost of developing the land as a commercial vineyard or if some of the units were sold the pro rata cost. It is further pleaded in paragraph 11.3.2 that there was an implied term that in the event the scheme failed or was terminated the first defendant would pay to the second defendant and the plaintiff the actual cost of labour and materials and services required to develop the land as a commercial vineyard.
It is asserted that the second defendant is in breach of its obligations under the Vineyard Development Contract and in particular in failing to sell the units to the growers.
The terms of the Vineyard Management Contract required York to manage the development and the sale of the interest to growers.
Pursuant to the Vineyard Services Contract the plaintiff undertook to carry out certain work on the land and the second defendant undertook to pay the plaintiff.
The plaintiff asserts that there were two Variation Agreements. The first Variation Agreement is pleaded, in paragraph 14, to have been breached in about September or October 1999. It is claimed that apart from the express terms which are pleaded there are implied terms. One of which is that the first defendant would pay the second defendant for the cost of developing the land as a vineyard in the event that insufficient units were sold, less an amount required to discharge a mortgage to the National Australia Bank.
It is asserted in paragraph 18 that the second defendant breached that Variation Agreement and as a result the first defendant was liable to pay the second defendant and the plaintiff for the work performed and materials supplied to develop the land as a vineyard.
It is pleaded that the Second Variation Agreement was reached sometime in 1999 and provided that the first defendant would pay the plaintiff the costs incurred by the plaintiff of developing the land as a vineyard.
I think the proposed Statement of Claim has some defects. It does not particularise the facts and circumstances relied upon for the implication of the various terms and various agreements but I think it may be understood that those terms are said to be implied to give business efficacy to the various contracts.
The statement of claim is in a rather unusual sequence. That might be the result of a number of amendments over a number of years.
It does not clearly say when and pursuant to which contract the first defendant became indebted to the plaintiff in the sum claimed. It does not clearly state that the amount claimed was due and payable by the first defendant to both the second defendant and the plaintiff when notice was given by the plaintiff to the first defendant pursuant to s 10 of the Act.
I think the statement of claim could be improved but that is not the purpose of this exercise. The purpose of this exercise is to determine whether or not the statement of claim is in a form which gives the defendants fair notice of the plaintiff’s claim.
In the end result I am not persuaded that the document is so defective that it should not be allowed to be filed and stand as the plaintiff’s statement of claim.
In my opinion, the document identifies the contracts which the plaintiff relies upon for its claims against the two defendants. It pleads that those contracts were an oral agreement and gives particulars of the facts and circumstances giving rise to those agreements.
It identifies the express and the implied terms of the respective agreements albeit not in a logical sequence. However, that is not a matter of any moment.
It identifies the second defendant’s breach. It does not directly identify the first defendant’s breach but I think that may be understood by reference to the relief sought in paragraph 28 of the proposed statement of claim.
In my opinion it would be appropriate to allow the statement of claim to be filed.
It can be seen from the matters to which I have already referred that the plaintiff claims that both the first and second defendant are indebted to it for its costs and services in respect of the development of the land.
It thereby rectifies the deficiency to which I referred in my reasons of 10 December 2001.
Defendant’s counsel, however, submitted that the lien should be discharged in any event because the plaintiff has not addressed the difficulties identified by the first defendant in relation to the Act.
It is said that the statement of claim does not address the first defendant’s submission that there was never any sum due and payable.
In my opinion, it is implicit in paragraph 24 of the statement of claim that the sum claimed by the plaintiff became due and payable in 1999 and remains due and payable.
The plaintiff asserts in paragraph 30 that it gave the notice required under s 10 of the Act. It is implicit in paragraph 30 that the sum was due and payable at the time that the notice was given.
In due course it will be for the plaintiff to establish that the amount was payable at the time notice was given pursuant to s 10 of the Act, but that is a matter of evidence.
In my opinion, the statement of claim is adequate to support the claim for the lien.
I think in those circumstances I should make the following orders:
1Leave to the plaintiff to file the amended statement of claim in the form of exhibit FMS 1 to the affidavit of Fiona Margaret Stevens sworn on 14 February 2002.
2The appeal from Master Bowen Pain be dismissed.
I shall hear the parties on the question of the costs of the appeal and the application to amend the statement of claim.

[2002] SASC 93

22 March 2002